Complainant

Respondent

Parties

Marta  Siudak

Slane Trading Company Limited

Representatives

Aaron Shearer BL

 Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00050623-001

16/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00050623-002

16/05/2022

The respondent operates an old manor house as a wedding and function venue. The complainant commenced employment as Operations Manager in October 2021 and her employment was terminated by the respondent on 2nd March 2022. The complainant informed the respondent that she was pregnant on 27th December 2021. She sought a risk assessment due to concerns about COVID and due to a recent outbreak within the workplace. During the last week of 2021 and into January 2022, discussions took place with her line manager on facilitating home working with revised duties.

From 19th January 2022, formal arrangements were agreed by parties on remote working with revised duties and a pay reduction. The complainant was earning €16.82 per hour working 40 hours per week. This was reduced to €14 per hour working 40 hours per week.

There were still ongoing discussions by the parties on returning to the Operations Manager role in due course. The complainant suffered a miscarriage at the beginning of February 2022. She returned to work for a short while and at the end of February received a letter to attend a disciplinary meeting. Her employment was terminated on 2nd March 2022 based on under performance in the role.

Two complaints were received by the Workplace Relations Commission on 16th May 2022, one complaint alleging unfair dismissal and the other alleging discriminatory treatment on gender grounds and due to pregnancy.

At the first hearing on 6th October 2022, a preliminary issue arose as the complainant sought to pursue the complaint under the Employment Equality Acts and withdraw the Unfair Dismissals complaint. The preliminary decision taken was to allow the complainant to pursue the complaint under the Employment Equality Acts and these matters were heard on 17th November 2022.

The complainant gave evidence that from the commencement of her employment there were no significant issues with her performance. Her previous line manager left the company on 6th December 2021, and she explained that her duties were not as clear under her new line manager. She confirmed that she attended a meeting for 5-10 minutes on 10th December 2021 with the Director. This arose after she was demonstrating to staff on how to clean appropriately. The Director’s view was that she should not be doing their work and should just tell them what to do instead of attending the venue to demonstrate.

The complainant confirmed that she informed management of her pregnancy on 27th December 2021. She outlined that she had concerns being in work while pregnant and this was causing her some stress particularly when COVID cases emerged in the workplace. On her doctor’s advice she sought a risk assessment at this time. She worked on some weddings over the Christmas period and met with her line manager on 4th January 2022 to discuss remote working.

The complainant worked a few days from home prior to the formal agreement of a revised role with reduced pay effective from 19th January 2022. She continued discussions with her line manager on her future role and the option of reverting back to her Operation’s Manager post in due course.

The complainant suffered a miscarriage on 4th February 2022 and sent a text message to her line manager on that date. During the sick leave period she received flowers from her work colleagues and returned to work on 21st February 2022. When she returned, her line manager had left the employment and she was liaising with a new manager who was a consultant working 3 days a week. She confirmed that she met this consultant on a few occasions to discuss training. 

The complainant then described the disciplinary meeting she attended on 2nd March 2022, at the request of the Director. At this meeting, the Director referred to the meeting of 10th December 2021. The complainant was surprised at this, as the meeting back in December was a short meeting of 5-10 minutes and was not viewed by her as a performance review meeting, particularly as she received no minutes of same at that time.

Even though the disciplinary meeting of 2nd March 2022 was unpleasant for her, the complainant described her conduct during same as reasonable particularly considering the circumstances. She outlined that she received text messages from the Director in the days following her dismissal describing her behaviour as being aggressive and threatening at the dismissal meeting. She refused an invite from the Director to meet again and requested no further texts particularly as she was no longer in the employment.

The complainant was cross examined by the respondent representative about her induction into the role after taking up employment. She was questioned on her relationship with her previous and existing line manager. She was questioned on her ability in the role, her English language competency, and her ability to send emails and engage with clients. She was asked about a range of previous incidents that arose during her employment particularly in November and December 2021. The complainant responded that the role was stressful at times and her role was not always clearly defined. She was also queried on the alternative employment she obtained shortly after being dismissed and how this compared with the competencies required with her former role with the respondent company.     

The respondent representative gave an outline of their case and then called Ms Quigley, Director of the company to give evidence.

Ms Quigley gave evidence on the Operations Manager role and how the complainant under performed in the role. She outlined that the complainant was responsible for a few operational issues that arose in or around November/December 2021. She also outlined that there were issues with completing checklists.

She gave evidence on the disciplinary meeting of 2nd March 2022 and that her intention was not necessarily to dismiss the complainant as it was difficult to find staff at that time. She stated that the complainant’s aggressive behaviour at the meeting contributed to the decision to dismiss. She outlined that she was aware that the complainant had sought legal advice in or around the time of dismissal.

Under cross examination, Ms Quigley was asked of her knowledge of legal advice obtained by the complainant around the time of dismissal. She was questioned on whether she was genuine in portraying that she had not fully decided whether to dismiss the complainant at the disciplinary meeting on 2nd March 2022.

She was asked about specific dates of the operational issues that she held the complainant responsible for. She was questioned on the reason for keeping a note of the meeting on 10th December 2021 which was not shared with the complainant at that time and why this earlier meeting was raised at the dismissal meeting on 2nd March 2022. She was questioned on why there were no other notes on any performance issues, particularly related to the operational issues she referred to in her testimony. She responded that these issues came under the line managers responsibility. She was asked how any underperformance were assessed when she was on annual leave for the weeks prior to the dismissal and the complainant had only worked a minimum period in the revised role.

The respondent then called on Ms Wall, a Wedding Co-ordinator to give evidence. She outlined that she had been working for 15 years with the respondent and that the complainant was not strong in dealing with staff and did not take advice well.

Under cross examination, Ms Wall confirmed that after the dismissal, the Director requested her to outline in an email what she had witnessed previously and how the complainant dealt with staff. Ms Wall was asked whether she had written the email herself and she confirmed she had.   

Preliminary Issue

At the hearing on 6th October 2022, the issue was raised as to whether the complainant had the option to pursue her case under the Employment Equality Act.

Section 101 (4A) of the Employment Equality Act 1998 states.

Where an employee refers-

(1)   a case or claim under section 77,

and (2) a claim for redress under the Act of 1977, to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (1) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

To implement the above, SI No 126/2016 set out that the ‘relevant date’ as 42 days from the date of the notification from the Workplace Relations Commission to the employee concerned.

The notification was sent by ordinary post on 22nd June 2022 from the Workplace Relations Commission offices to the complainant’s representative. The letter is a four-page letter with the 4th page consisting of a tick box to withdraw one or other of the two complaints within the 42 days.

At the hearing, the complainant’s representative stated that this correspondence was not received and therefore, the complainant could not exercise the right to withdraw one or other of the complaints.

The respondent’s representative stated that they were prepared and expected the Unfair Dismissals complaint to be heard and that they were unprepared for the complaint under the Employment Equality Act.

I adjourned the hearing to decide on this preliminary issue.

Decision on Preliminary Issue

On recommencing the hearing, I informed the parties that I had decided to allow the complainant to proceed with the Employment Equality complaint. I adjourned proceedings to ensure the respondent was not prejudiced and could prepare for this complaint prior the next hearing date which was subsequently arranged for 17th November 2022.

The reason for my decision on allowing the Equality complaint is that I was not satisfied that the complainant’s representative had received the correspondence from the Workplace Relations Commission of the option form dated 22nd June 2022. Consequently, the complainant did not get to exercise the option she would pursue her complaint under. The complainant had originally submitted the complaint form under both pieces of legislation.

Furthermore, given the primacy of European Law, the complainant could not be deprived of exercising her rights in bringing a case under legislation derived from an EU Equality Directive.

Section 75 of the Employment Equality Act states that ‘The Director General of the Workplace Relations Commission may delegate to an adjudication officer any functions conferred on him or her under this Act.’

In accordance with the above, I decided that I had jurisdiction to hear the Employment Equality complaint.

The applicable law

Discrimination for the purposes of this Act. 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

• (a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

(2A) Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

The Labour Court has set out the protections of women during pregnancy in Croc’s Hair and Beauty v Ahern [2019] EDA 195 and stated.

‘It has been made clear by the European Court of Justice that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender- decision in case C-177/88 Dekker v Stichting Vormingscentrum voor Jong Volwassenen [1990] ECR- 1-3941’.

Burden of Proof

Section 85A(1) of the Equality Act provides as follows in relation to the burden of proof on a complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The respondent in their submission has referred to Melbury Developments Ltd v Valpeters[2010] ELR 64 that the burden as per section 85A falls on the complainant to establish the facts of discriminatory treatment in the first instance.

Although normally a ‘prima facie’ case needs to be established by the complainant, it is well established through European and Irish case law that women are to be afforded special protection from adverse treatment, and from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The authority for this was set out in Trailer Care Holdings Ltd v Healy [2012] (EDA 128) and in O’Brien v Persian Properties [2012] (DEC-E2012-010).

I have examined the submissions and listened carefully to the full evidence that was presented by the parties. Although the complainant was not required to establish a ‘prima facie case’ per se, she gave a full account of her employment history leading up to the dismissal and the subsequent text messages. I examined the testimony and rationale for the dismissal very closely, particularly as the respondent was on notice of the pregnancy. Effectively, the issue to be decided in this case is whether the dismissal was in any way connected to the complainant’s pregnancy or were there legitimate cogent reasons to prove the dismissal was genuine.

Findings

Discriminatory Treatment

I do not find that there was discriminatory treatment on gender with access to remote working. Even though evidence was given that some administrative staff got immediate access to remote working, the complainant’s role was under review as her tasks were not purely administrative in nature. In fact, agreement was reached on remote working after a few weeks and there did not appear to be any issues with the working relationship at this time.

On the treatment of the complainant on the pay reduction (€16.82 to €14 per hour), I do not find that there was discrimination on gender grounds. The reasoning for this is that there was an engagement with the company on a revised role and agreement reached on reduced pay for a temporary period. The complainant wished to continue working remotely and a new temporary contract was agreed albeit with no specific date for a return to her Operation’s Manager role. There is also no clear comparison with how another male staff member would have been treated in similar circumstances. The extent of the reduced responsibilities in the revised role was also unclear from the evidence.

Discriminatory Dismissal

On 27th December 2021, the complainant informed her employer she was pregnant. She had legitimate concerns about ensuring she was in a safe working environment. She was upfront in sharing her doctor’s concerns to minimise any risks to her pregnancy. She sought a risk assessment. Although the complainant had concerns at this time, she did work on some weddings over the Christmas period. Her line manager was aware of her needs although it did take some weeks to address these in the form of alternative duties suitable to remote working. Remote working was granted on a day-to-day basis until the 19th January 2022 when a more formal arrangement of remote working commenced. The complainant’s duties and role were subject to change at this time. She reluctantly agreed to a pay reduction as her priority was a safe working environment during the early stages of her pregnancy. It was confirmed that she could return to the Operations Manager post in the future and there was discussion with her line manager on the type of duties that could be carried out in the months ahead.

Up to the end of January 2022, there was no documentary evidence that the complainant was underperforming or that her job was in jeopardy. In fact, she was pro-active in agreeing an alternative role and agreed to a pay reduction. The change to an alternative role was also an opportunity for her line manager to flag any performance issues. The respondent did not raise any performance issues at this point. The respondent nor the complainant raised any issue about probation around the time of this change either. All the above evidence demonstrates that her performance was not under scrutiny and that her job was not in jeopardy.

There is no documentary evidence in the lead up to the complainant being summoned to a meeting as per letter of 28th February 2022. She was then dismissed on 2nd March 2022 due to.

·        failure to effectively manage staff under your direction.

·        failure to complete satisfactory checklists assigned to you leading to others having to complete the work.

·        failing to complete tasks satisfactorily assigned to you resulting in others having to complete your work.

At the dismissal meeting itself on 2nd March 2022, the Director raised the earlier meeting of 10th December 2021 and the note she took at same. As this note was not shared with the complainant back in December 2021, it appears to me that the respondent was anxious to get this on the record retrospectively. Even though the Employee Handbook allows for a right to audio record ‘capability and competence meetings’, there was no audio of this meeting. The ‘capability and competence policy’ allows for an informal discussion and then a formal discussion. There was no second formal meeting and there were no minutes made available to the complainant after the meeting on 10th December 2021.

The complainant outlined that the meeting on 10th December 2021 in her eyes was short and related to her demonstrating cleaning duties to other staff. This meeting is important as the Director is relying on this meeting to demonstrate an ongoing underperformance issue. Although there is conflicting evidence of the status of this meeting of 10th December 2021, the complainant’s account is more credible due to a lack of correspondence on underperformance during her employment period.

From the complainant’s perspective, the dismissal decision arose without any lead up or advance warning. The respondent in evidence blamed the complainant on operational issues occurring in November/December 2021. The respondent also gave evidence of difficulties with ‘checklists’. There are no contemporaneous notes or letters flagging these events as ‘underperformance’ in line with the company’s own policy.

The whole theme of the respondent’s evidence was mostly concerned with retrospectively making a case of underperformance. The distinct lack of records or contemporaneous notes demonstrates that the decision to dismiss the complainant arose sometime after she declared that she was pregnant on the 27th December 2021. I did not find the respondent’s evidence convincing in demonstrating that there were legitimate performance issues and that valid reasons existed for dismissal.

Furthermore, the complainant was only a short period in her revised role when she was dismissed. The respondent in evidence was relying on anecdotal evidence occurring at the start of the complainant’s employment back in November and December 2021 as the reason for dismissal. The lack of records to flag any underperformance issues as per company procedure does not convince me that the complainant’s performance was in question. Also, the complainant was not in her new revised role for any sufficient time for her performance to be assessed adequately.

I find that the evidence establishes an inference of discriminatory treatment, and that the dismissal was related in some way to the complainant’s gender and pregnancy. Although this inference can be rebutted by the respondent, I did not find sufficient, substantial and/or cogent reasons for the dismissal from the respondent’s evidence.

I find that the complaint of discriminatory dismissal on gender grounds is well founded.

In terms of redress, I am minded that as per the Directive that penalties must be effective, proportionate, and dissuasive. The complainant has sought compensation and I agree that it is the appropriate remedy in this case.

The complaint of discriminatory dismissal on grounds of gender is well founded.

I find that the respondent should pay her the sum of €17,500 euro compensation.

CA-00050623-002

The complaint of gender discrimination on remote working is not well founded.

The complaint of gender discrimination on the reduction in pay is not well founded.

The complaint of discriminatory dismissal on grounds of gender is well founded. The respondent is to pay her the sum of €17,500 euro compensation.

Gender Discrimination, Dismissal